Estrich: Get ready for the fireworks to come

By Susan Estrich Creators Syndicate

Friday

Jul 6, 2018 at 12:01 AM

It was Justice Anthony Kennedy's resignation that did it.

Last week was not, for fans of the Constitution's prohibition of intentional discrimination, such a great week with him. Could a president spew anti-Semitic garbage before and after issuing a travel ban limited to Israel? Could it be worse? It most certainly could.

The newspapers screamed about the White House's great coup in securing such a well-timed resignation. White House aides must have been openly bragging to reporters about how they flattered Justice Kennedy with family face time and talk of his "legacy" so he would retire now. For them to be so shameless in promoting their political victory at Kennedy's expense tells you everything about what's to come.

These aides did not, I expect, tell Justice Kennedy that his decision would put the Supreme Court exactly where it should not be -- that is, in the middle of a bitterly divided election. They did not tell him that issues he has cared deeply about and tried to address thoughtfully -- including gay rights and, yes, abortion -- would become political footballs, wedges in close races, the stuff of rallies and attack ads, not reasoned debate. Is this what they meant by his "legacy"?

The reports from the White House are that the president doesn't care all that much about abortion. Mr. Family Values he is not. "Husband of the Year" is not a reality show he could host. But his base does care about abortion, and they want this one, and by all accounts, the president also doesn't care enough not to give it to them.

Which is to say that he is going to let his allies and supporters tear the country apart over the abortion issue this fall, in advance of the midterms.

I remember when getting "in trouble" was a problem that could literally end your life; when we would all chip in for bus fare to New York, where you could get a legal abortion; when we'd hope no one started bleeding too much on the bus ride back, much less at a local hospital.

And I remember the utter and complete sense of liberation when a court of nine men, in a long opinion by a Minnesota Republican with a bookish side, changed the lives of millions of women by holding that a woman actually had rights -- rights that the Constitution recognized -- to control her body.

There were all kinds of flaws with Roe v. Wade, legally speaking, but that is true of many great decisions.

The greater problem has always been that the court's decision did not, could not, take abortion out of politics any more than Brown v. Board of Education has answered the questions of race that it tackled. So we continue to have states that try to make abortion more expensive and more burdensome; we continue to have states where a woman might still have great difficulty obtaining prescription medication to induce a therapeutic termination even after going for a checkup and discovering that the fetus's heart has stopped beating.

A juicy Supreme Court confirmation fight, by contrast, doesn't just involve one state or one pharmacy or one woman or one set of regulations. It is drama writ large, seven days in September or whenever it is, for the two parties or some subset of them to produce a reality show of their own: "Confirmation 2018: The Fight for Justice Kennedy's Seat," made for television, a veritable parade of screaming heads.

I guess we should be relieved that the Republicans, once so determined to get rid of Obamacare, are now ready to focus on gay wedding cakes (not even gay weddings). And politically speaking, it is certainly better for the anti-Trumpers if the Trump camp's bragging is about getting rid of Justice Kennedy and achieving purity on abortion instead of how low unemployment is. History suggests that while most Americans are pro-choice (or at least anti-government), they don't "vote" the issue (unlike those who oppose choice, who do vote the issue). I'm not sure that still holds.

But even if putting abortion rights on the table energizes young voters more than Nancy Pelosi does (and it might), putting the Supreme Court in the middle of an election -- turning a nomination into a partisan war game -- is not how an administration shows respect for the rule of law. Justice Kennedy deserved better.

Susan Estrich (sestrich@law.usc.edu) teaches law and political science at the University of Southern California. She writes for Creators Syndicate.

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